Court of Appeals for the Sixth Circuit Cases

United States v. Rudy Guerrero

76 F.4th 519 • 2023-08-07

Citation76 F.4th 519

Date Filed2023-08-07

Docket22-6015

Cited15 times

StatusPublished

Full Opinion (html_with_citations)

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0167p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 22-6015
│
v. │
│
RUDY GUERRERO, │
Defendant-Appellant. │
┘

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:21-cr-00136-4—Danny C. Reeves, Chief District Judge.

Decided and Filed: August 7, 2023

Before: GRIFFIN, McKEAGUE, and MURPHY, Circuit Judges.
_________________

COUNSEL

ON BRIEF: Gal Pissetzky, PISSETZKY LAW, LL, Chicago, Illinois, for Appellant. Charles
P. Wisdom, Jr., James T. Chapman, UNITED STATES ATTORNEY’S OFFICE, Lexington,
Kentucky, for Appellee.
_________________

OPINION
_________________

McKEAGUE, Circuit Judge. Defendant Rudy Guerrero was convicted of conspiracy to
commit money laundering. He challenges his conviction on several grounds, including variance
and venue, as well as his sentence and an evidentiary ruling by the district court. Because the
errors he alleges are either not prejudicial or not error at all, we affirm his judgment and
sentence.
No. 22-6015 United States v. Guerrero Page 2

A. Facts

The facts of this case involve a money laundering scheme, organized by a person
unknown to law enforcement (“Defendant One”) who operated as a money broker for drug
organizations that wanted to move money from the United States to Mexico. Defendant One
orchestrated the receipt of cash in the United States, the conversion of the cash into
cryptocurrency, and the conversion of the cryptocurrency back into cash in Mexico.

Agents of the Drug Enforcement Agency (DEA) managed to infiltrate the operation. An
undercover agent (the “coordinating agent”1) would receive from Defendant One a list of cities
in which drug proceeds needed to be obtained, would choose cities, and then coordinate with the
DEA.2 The DEA would select another undercover agent (the “receiving agent”) to participate in
the scheme by receiving illicit funds. The DEA would give the coordinating agent the receiving
agent’s phone number and a bill code.3 The coordinating agent would pass that information on
to Defendant One, who would pass it on to his client. The receiving agent’s information would
end up with the client’s contacts in the chosen city, so that a money drop of the client’s money
could be arranged. The receiving agent would then be contacted, and the money drop would be
set up and executed, with the receiving agent obtaining illicit funds from a courier. The
receiving agent would then deposit the funds in an undercover DEA bank account. The money
was then transferred to Defendant One as cryptocurrency, after which it would eventually be sent
back to the client as cash.

Defendant Guerrero worked at a car dealership in the Chicago area. He was involved as
a courier in three separate money drops with DEA Agent Corona in Chicago in May 2020.
Corona’s undercover information was passed by DEA Agent Stout—operating out of Lexington,
Kentucky—to Defendant One, who passed it on to an unknown male (UM), who coordinated the

1
This “agent” nickname (and others used in this opinion) are used for clarity’s sake only—they were not
used at trial.
2
The coordinating agent communicated with Defendant One via cellphone.
3
A bill code is a picture of the serial number on a dollar bill. It was used in the scheme to ensure that the
person receiving the money was the right person.
No. 22-6015 United States v. Guerrero Page 3

drops via phone. On May 6, 2020, UM told Corona to meet with a man at a location near the car
dealership where Guerrero worked. There, Guerrero verified Corona’s bill code, then asked
Corona to move his car to a side street. Subsequently, Guerrero put a backpack containing
almost $150,000 into Corona’s car. Guerrero also gave about $150,000 to Corona in a similar
fashion on May 8 and May 12, 2020, in drops again coordinated by UM. The second drop was at
the same location as the first, but the third drop took place closer to Guerrero’s residence,
because he was not working that day. During at least the May 6 and May 8 drops, Guerrero
indicated that he knew he was delivering $150,000. The money in the bags for each drop was
wrapped in rubber bands and heat-sealed in plastic. This process occurred in a nearly identical
manner in multiple different cities with multiple couriers and receiving agents, including twice in
Lexington, Kentucky. UM coordinated at least one other drop involving a different courier than
Guerrero.

B. Procedural History

On December 9, 2021, a grand jury indicted Defendant One, Guerrero, and several other
couriers, including Carlos Gonzalez, Warren Miller, Anthony Cossu, and Oscar Palacios
Espericuete, with conspiracy to launder money. On May 29, 2022, Guerrero moved to transfer
venue from the Eastern District of Kentucky to the Northern District of Illinois, arguing that he
only participated in allegedly illicit activity in Illinois. The district court denied the motion,
stating:

[T]he government’s proffered evidence, supported by the factual bases included
in the plea agreements of co-defendants, demonstrates that Guerrero’s co-
conspirators took actions in furtherance of a single conspiracy in this district.
And venue is proper in any district where a co-conspirator took an action in
furtherance of the conspiracy.

R. 97 at PID 367.4

Guerrero went to trial, where he was tried alone. At the close of the Government’s
evidence, Guerrero moved for a directed verdict, which was denied. During Guerrero’s closing
argument, his counsel began to expound on Kotteakos v. United States,

328 U.S. 750

(1946),

4
The venue question was eventually posed to the jury.
No. 22-6015 United States v. Guerrero Page 4

detailing the law on hub and spoke conspiracies. The Government objected to these statements,
and the district court sustained the objection. Guerrero was convicted of the sole count in the
indictment—conspiracy to commit money laundering.5 Guerrero filed a Rule 29 Motion for
Acquittal, challenging the sufficiency of the evidence and arguing that the Government did not
prove him guilty of the charged conspiracy (a conspiracy between all individuals named in the
indictment), but rather only of a more limited conspiracy between himself and Defendant One.
He also filed a Rule 33 motion for a new trial, making similar arguments. The district court
denied the motions. Guerrero was sentenced to eighty months’ imprisonment. During
sentencing, Guerrero requested an acceptance of responsibility reduction and a minimal
participant role reduction, which the district court declined to grant. Guerrero timely appealed.

II.

A. Was there a fatal variance?

Guerrero continues to argue on appeal that his conviction must be overturned due to a
variance6—namely, that the evidence at trial failed to demonstrate an overarching conspiracy
between himself and each individual named in the indictment, but rather demonstrated only a
smaller conspiracy between himself and Defendant One. “Whether single or multiple
conspiracies have been shown is usually a question of fact to be resolved by the jury under
proper instructions and to be considered on appeal in the light most favorable to the
government.” United States v. Grunsfeld,

558 F.2d 1231, 1238

 (6th Cir. 1977) (per curiam).
Because Guerrero raised this issue before the district court, we will “reverse his conviction if a
variance occurred and that variance affected his substantial rights.” United States v. Caver,

470 F.3d 220, 235

 (6th Cir. 2006).

         5
             The jurors were instructed on Guerrero’s multiple versus single conspiracy defense.
         6
           While Guerrero occasionally styles this question as a sufficiency of the evidence question, he is in effect
arguing a variance, as he admits to conspiring with Defendant One and argues solely that a different conspiracy was
proven at trial than was described in the indictment, see Appellant’s Br. at 43 (“Throughout the entire proceeding
and during the PSR interview, Mr. Guerrero took full responsibility for his actions, never denied involvement, and
never lied about his role or actions. . . . Mr. Guerrero admitted that he was part of a conspiracy but not the
conspiracy as charged by the government.”). We thus treat this argument as a variance argument. See United States
v. Mack,

837 F.2d 254, 257

 (6th Cir. 1988) (“A more difficult problem . . . is whether the government was able to
prove one overall conspiracy or two separate conspiracies. This is not a sufficiency of the evidence question, but is
instead a problem of variance between indictment and proof.”).
 No. 22-6015                     United States v. Guerrero                                 Page 5


       A fatal variance is “a theory of error often raised but seldom seen.” United States
v. Williams,

612 F.3d 417, 423

 (6th Cir. 2010). A variance occurs where “the terms of the
indictment ‘are unchanged, but the evidence at trial proves facts materially different from those
alleged in the indictment.’” United States v. Fields,

763 F.3d 443, 467

 (6th Cir. 2014) (quoting
United States v. Chilingirian,

280 F.3d 704, 711

 (6th Cir. 2002)). In a conspiracy case, a
variance may arise where the indictment charges a single conspiracy and the evidence at trial
instead demonstrates multiple, separate conspiracies. See

id.

 But to overturn his conviction, a
defendant must demonstrate more than that a variance occurred: he must demonstrate that he was
prejudiced by the variance—that “trying multiple conspiracies under a single indictment
substantially influenced the outcome of the trial.” Caver,

470 F.3d at 237

. Whether a variance
occurred in this case is a difficult question that we need not answer, because Guerrero has failed
to demonstrate that he was prejudiced by the alleged variance.

       “The fact that a variance has been demonstrated, standing alone is not per se prejudicial.”
United States v. Feagan,

472 F. App’x 382, 387

 (6th Cir. 2012) (citing United States v. Osborne,

545 F.3d 440, 443

 (6th Cir. 2008)). The defendant bears the burden to demonstrate prejudice.
Chilingirian,

280 F.3d at 712

. In this context, prejudice can occur where (1) “the defendant is
unable to present his case and is ‘taken by surprise by the evidence offered at trial,’” (2) “the
defendant is ‘convicted for substantive offenses committed by another,’” or (3) the jury transfers
“spillover” guilt due to improperly joined defendants or improperly admitted evidence. United
States v. Swafford,

512 F.3d 833, 843

 (6th Cir. 2008) (citations omitted); see also United States
v. Williams,

998 F.3d 716

, 731 (6th Cir. 2021). A variance is prejudicial if it had a “substantial
and injurious effect or influence in determining the jury’s verdict.” Kotteakos,

328 U.S. at 776

.

       Guerrero argues only that he was prejudiced by the possibility of guilt transference,
alleging that the evidence of multiple conspiracies “create[d] the improper impression of greater
culpability . . . [and] lowered the government’s burden of proof.” Appellant’s Br. at 35. In
determining whether the possibility of guilt transference was sufficiently prejudicial, this Court
has looked to several factors, including: “(1) the number of conspiracies the evidence establishes,
(2) the number of non-conspiratorial co-defendants tried with defendant, and (3) the size of the
 No. 22-6015                     United States v. Guerrero                                 Page 6


conspiracy alleged in the indictment.” United States v. Peatross,

377 F. App’x 477, 485

 (6th Cir.
2010); see also United States v. Sokbay Lim,

556 F. App’x 440, 446

 (6th Cir. 2014).

       Here, the potential for guilt transference or jury confusion was quite limited. Guerrero
was not tried with any co-defendants, let alone a “large number.” Swafford,

512 F.3d at 843

.
The jury was thus not tasked with determining the guilt of anyone but Guerrero. The total
number of individuals named in the indictment as part of the conspiracy was only eight, and the
actions of only four of those individuals (besides Guerrero and Defendant One, with whom he
admits conspiring)—the couriers Cossu, Gonzalez, Miller, and Espericuete—were discussed at
trial. Guerrero alleges that each courier participated in their own money laundering conspiracy
with Defendant One, and, as stated, the actions of only four other couriers were discussed at trial,
creating a total of only five allegedly separate conspiracies (including Guerrero’s). Finally, the
trial lasted only three days, meaning the jury did not have to sift through massive amounts of
potentially confusing trial testimony. We have found similarly low numbers of potentially
extraneous conspirators and conspiracies, and similarly short trials, weigh against a finding of
prejudice. See United States v. Hughes,

505 F.3d 578

, 589–91 (6th Cir. 2007) (finding no
prejudice where there were “eleven alleged conspirators, six named in the indictment along with
five unindicted conspirators” and noting: “In this case, six people were tried together, three of
whom were part of the [relevant] conspiracy. This is not a case where the sheer number of co-
defendants resulted in a likelihood of juror confusion or guilt transference.”); United States
v. Bakri,

505 Fed. Appx. 462, 469

 (6th Cir. 2012) (“[T]here was minimal chance of spill-over.
There were four co-defendants, two of whom testified against Bakri, and Bakri’s trial was
ultimately severed from the other defendants. Accordingly, the risk of transference of guilt from
one defendant to another was minimal.”); Caver,

470 F.3d at 237

 (“Only three Defendants were
tried, over a trial that lasted one week.”); Sokbay Lim,

556 F. App’x at 446

 (finding no prejudice
where only four defendants were tried together and only four conspiracies were proved at trial);
Osborne,

545 F.3d at 444

 (“Osborne’s situation . . . presents little risk of transference of guilt
between the two defendants. The evidence established at most two conspiracies among only
three people.”); see also United States v. Guerra-Marez,

928 F.2d 665, 672

 (5th Cir. 1991) (“The
rationale behind the Kotteakos decision is inapplicable here. Although several defendants were
initially charged in this indictment, only four proceeded to trial. While eight conspiracies were
 No. 22-6015                            United States v. Guerrero                                            Page 7


established in Kotteakos, only two were proven here. Accordingly, the risk of transference of
guilt was minimal.”). Thus, the main factors this Court looks to weigh against prejudice.

         With so few co-conspirators and a relatively small web depicted at trial, it is unlikely that
the jury was confused or inappropriately weighed evidence implicating another co-conspirator
against Guerrero. See Osborne,

545 F.3d at 444

 (noting that “Supreme Court precedent supports
a holding that where, as here, there is little chance of jury confusion and shifting of blame
between conspiracies, a variance is harmless error,” and finding that the defendant did not
demonstrate prejudice where his case “involve[d] straightforward and easily understood facts”).
This is especially so here because the majority of the alleged co-conspirators that Guerrero
denies any connection with were on the same culpability level as him (couriers) and accused of
the same crime as him (conspiracy to commit money laundering), and the witnesses—including
certain co-conspirators themselves—clearly testified as to which co-conspirator did what act.
See Caver,

470 F.3d at 237

 (“Defendants were charged with conduct of approximately equal
culpability . . . . And the witnesses at trial also were careful to specify what interactions they had
had with each individual defendant.”); Sokbay Lim,

556 F. App’x at 446

; Osborne,

545 F.3d at 444

.

         Further, while it is unclear in this prejudice analysis the precise import of the sufficiency
of the evidence to convict the defendant of at least one of the alleged conspiracies,7 the evidence
that Guerrero conspired to commit money laundering—the offense charged in the indictment—
with at least Defendant One is very strong.8 Indeed, Guerrero admits in his brief to doing so—


         7
           Multiple cases from this circuit include statements to the effect of “if the government proves multiple
conspiracies and a defendant’s involvement in at least one of them, then clearly there is no variance affecting that
defendant’s substantial rights.” United States v. Robinson,

547 F.3d 632

, 642–43 (6th Cir. 2008) (quoting United
States v. Lee,

991 F.2d 343, 349

 (6th Cir. 1993)); see also United States v. Matthews,

31 F.4th 436

, 455–56 (6th Cir.
2022). However, this blanket statement is in tension with cases such as Swafford, in which the defendant’s
participation in at least one conspiracy was clearly demonstrated but we found prejudice anyway. 512 F.3d at 842–
844; see also United States v. Mize,

814 F.3d 401, 412

 (6th Cir. 2016) (noting that harmless error is not the test for
prejudice in this context). It therefore appears as if there is confusion in this circuit as to how definitive evidence
that the defendant participated in a conspiracy—if not, perhaps, the conspiracy charged—should be factored into the
prejudice analysis.
         8
         As described above, evidence at trial demonstrated that Guerrero on three separate occasions gave an
undercover agent that he did not know approximately $150,000 in heat-sealed packaging; that he knew on at least
two occasions how much money he was delivering; and that he knew to check the bill code to confirm identity.
 No. 22-6015                      United States v. Guerrero                                  Page 8


and claims that he never contested factual guilt of that conspiracy in any way. See Appellant’s
Br. at 43 (“Throughout the entire proceeding and during the PSR interview, Mr. Guerrero took
full responsibility for his actions, never denied involvement, and never lied about his role or
actions. . . . Mr. Guerrero admitted that he was part of a conspiracy but not the conspiracy as
charged by the government.”). With such strong evidence, it is unlikely that the jury would need
to resort to guilt transference in order to convict Guerrero of conspiracy to launder money. See
Feagan,

472 F. App’x at 387

 (“We find that the variance was not prejudicial because there was
overwhelming evidence of Defendant’s guilt. . . .”); United States v. Dhaliwal,

464 F. App’x 498, 509

 (6th Cir. 2012) (finding lack of prejudice where the defendant’s “conviction for
conspiring to distribute cocaine was based on the abundant evidence presented by the
government, [the defendant’s] own testimony that he drove from Utah to Michigan with the
cocaine, and a rejection of his duress defense.”).

       Guerrero cites frequently to Swafford, but that case is quite distinct from his own. In
Swafford, the defendant was indicted with forty charges related to the sale of iodine for use in
methamphetamine production.

512 F.3d at 838

.       The indictment alleged an overarching
conspiracy between Swafford and a large number of his customers, who allegedly purchased
iodine from Swafford to use to cook methamphetamine.

Id.

 This Court concluded that the
evidence at trial demonstrated not one large conspiracy between Swafford and the
methamphetamine cooks but many smaller conspiracies between Swafford and only some of the
alleged cooks.

Id. at 842

.   We found this variance to be prejudicial to Swafford due to
spillover/the potential for guilt transference.

Id. at 843

. In so concluding, we emphasized that
more than twenty customers testified about purchasing iodine from Swafford, with their
testimony varying in several aspects bearing on Swafford’s mens rea, including the amount of
iodine purchased and Swafford’s behavior during the exchanges.

Id.

 In this situation, some of
the exchanges testified about appeared innocent while some appeared much less so.

Id.

 Without
the variance, then, “[a] jury might have concluded that conspiracies existed between the
defendant and certain customers but not others. The resulting guidelines sentence, in turn, would
perhaps have been lower.”

Id.

 Here, by contrast, there were far fewer co-conspirators alleged
(and who testified at trial), and there was not a mix of potentially innocent and illicit transactions
that might confuse the jury. Solid evidence—and Guerrero’s own admission—supports the
 No. 22-6015                     United States v. Guerrero                                 Page 9


conclusion that Guerrero conspired with Defendant One to launder money. And Guerrero makes
no argument that being convicted for the overarching conspiracy affected his sentencing in any
way. In fact, he was sentenced based only on the money he delivered for laundering. Swafford
is inapposite.

       This case is much more similar to Sokbay Lim, where we found no prejudice.

556 F. App’x at 446

. Sokbay Lim involved a conspiracy in which organizers recruited American
citizens to “enter into sham marriages with Cambodian citizens.”

Id. at 442

. The Government
indicted twenty-two people with conspiracy to commit marriage fraud, including several
Cambodian citizens who entered into the sham marriages.

Id. at 444

. The indictment alleged
that fifty-eight people (including thirty-six unindicted alleged co-conspirators) “participated in a
single, massive conspiracy to commit marriage fraud.”

Id.

 The appellants—Cambodian citizens
who entered into the sham marriages—were convicted.

Id.

 We concluded that a variance had
occurred because the Government failed to demonstrate at trial one overarching conspiracy—
“the government lacked any proof that [the appellants] shared the broad common goal of
obtaining entry into the United States for all the other women in the conspiracy.”

Id. at 445

.
However, we found that the variance was not prejudicial.

Id. at 446

. We noted that the only
relevant risk of prejudice in that case was guilt transference, and found that risk minimal
considering the low number of co-defendants and conspiracies (four each).

Id.

 While we
acknowledged that the twenty-two people listed in the indictment, in combination with the thirty-
six unindicted alleged co-conspirators, was a “high number,” we stated that “the risk of prejudice
is reduced when the defendants ‘were charged with conduct of approximately equal
culpability[.]’ And the alleged participants—the organizers, the American men, the Cambodian
women—were charged with conspiracy to commit the exact same crime here: marriage fraud.”

Id.

 (alteration in original; internal citation omitted). Here, the number of co-defendants is also
low, and the number of people described in the indictment far lower than in Sokbay Lim.
Further, Guerrero was charged with conduct of approximately equal culpability to the others
listed in the indictment with whom he claims not to have conspired: acting as a courier. Thus,
there is no prejudice here as there was no prejudice in Sokbay Lim.
 No. 22-6015                      United States v. Guerrero                               Page 10


       We simply cannot say that the alleged variance substantially affected the “overall
fairness” of the trial. Hughes,

505 F.3d at 587

 (“To demonstrate substantial prejudice, the
appellant must show that the variance prejudiced his ability to defend himself or prejudiced the
overall fairness of the trial.”). Thus, we decline to find a prejudicial variance here.

       B. Was venue proper in the Eastern District of Kentucky?

       In a money-laundering conspiracy case, venue is proper “in any . . . district where an act
in furtherance of the . . . conspiracy took place.”

18 U.S.C. § 1956

(i)(2); see also Whitfield v.
United States,

543 U.S. 209

, 217–18 (2005). In this circuit, “a co-conspirator’s acts need not be
foreseeable to a defendant for venue to properly lie in the district where such acts took place.”
United States v. Iossifov,

45 F.4th 899

, 911 (6th Cir. 2022). Government agents cannot be
conspirators, and thus their actions alone cannot establish venue. See, e.g., United States v.
Williams,

274 F.3d 1079, 1084

(6th Cir. 2001).

Guerrero contends that venue was improper in the Eastern District of Kentucky because,
he alleges, he performed no acts in furtherance of the conspiracy in the district and neither did
his only proven co-conspirator, Defendant One. This argument depends on Guerrero’s other
argument that the overarching conspiracy alleged in the indictment was not proven, as acts
performed in furtherance of money laundering by Miller and Espericuete—Guerrero’s alleged
co-conspirators—were clearly performed in Lexington, Kentucky, which is in the Eastern
District. Guerrero denies conspiring with anyone other than Defendant One, and thus he argues
that those acts may not be used to establish venue for his case. The Government responds that
evidence at trial demonstrated that Guerrero joined an overarching conspiracy that included
Miller and Espericuete and their acts in Lexington. Additionally, the Government argues that
even if only a smaller conspiracy between Guerrero and Defendant One was demonstrated at
trial, venue was still established by Defendant One’s incoming phone communications into
Kentucky with Agent Stout. The district court denied Guerrero’s motion to transfer, finding that
there was a factual basis supporting the Government’s argument that Guerrero was part of an
overarching conspiracy including co-conspirators whose acts clearly could support venue in the
Eastern District of Kentucky.
No. 22-6015 United States v. Guerrero Page 11

We review venue determinations de novo. Iossifov, 45 F.4th at 911. We agree with the
Government that even if the evidence at trial proved only a conspiracy between Guerrero and
Defendant One, venue was proper in Kentucky via Defendant One’s phone communications with
Agent Stout, who at all times acted in Lexington. At least two circuits have held that such
communications may establish venue. See United States v. Rommy,

506 F.3d 108, 120

 (2d Cir.
2007) (phone communications “in furtherance of the conspiracy placed by a conspirator outside
the district to a government actor within the district is sufficient to establish venue in the district
with regard to any member of the conspiracy”); United States v. Gonzalez,

683 F.3d 1221

, 1225–
26 (9th Cir. 2012) (finding venue established by calls between a conspirator and a criminal
informant located in the relevant district, stating: “[w]e agree with the Second Circuit that
‘[w]hen a conspirator uses a telephone call—by whomever initiated—to further a criminal
scheme, the conspirator effectively propels not only his voice but the scheme itself beyond his
own physical location into that of the person with whom he is speaking’” (citation omitted)); see
also United States v. Day,

700 F.3d 713, 727

 (4th Cir. 2012); United States v. Naranjo,

14 F.3d 145, 146

 (2d Cir. 1994). We agree with the logic of these cases and adopt that holding here:
phone communications, made in furtherance of a conspiracy, from a conspirator to a government
agent located in a district “take place” in that district and so establish venue there as to any co-
conspirator.   See

18 U.S.C. § 1956

(i)(2).       Because Defendant One made incoming phone
communications to Agent Stout in the district to orchestrate the money drops performed by
Guerrero, venue was proper in the Eastern District of Kentucky.

       Guerrero contends that it must be reasonably foreseeable that the phone communications
will reach a district in order for venue to be proper there, and that such reasonable foreseeability
is missing here. It is true that the Second Circuit appears to require reasonable foreseeability in
order for phone communications to establish venue. See Rommy,

506 F.3d at 123

. However, the
Second Circuit requires reasonable foreseeability for venue in conspiracy cases generally. See,
e.g., United States v. Kirk Tang Yuk,

885 F.3d 57, 69

 (2d Cir. 2018) (“We have interpreted the
venue requirement to demand ‘some sense of venue having been freely chosen by the defendant.’
We have said that it must have been ‘reasonably foreseeable’ to each defendant charged with the
conspiracy that a qualifying overt act would occur in the district where the prosecution is
brought.” (internal citations omitted)). This circuit has no such requirement. See United States
 No. 22-6015                      United States v. Guerrero                             Page 12


v. Castaneda,

315 F. App’x 564, 569

 (6th Cir. 2009) (“Castaneda argues that the venue must
have been foreseeable. The Second Circuit has held that, for a conspiracy, an overt act must be
foreseeable to establish venue. However, neither the Sixth Circuit nor any other circuit appears
to have adopted that requirement.” (internal citation omitted)). We thus decline to require
reasonable foreseeability in this context where we do not require it elsewhere. See Gonzalez,

683 F.3d at 1226

(“[I]t does not matter [for venue purposes] whether [the defendant] knew or
should have known that the [confidential informant] was located in the Northern District of
California during the calls.”).

C. Did the district court err in sustaining the Government’s objection during
Guerrero’s closing argument?

Guerrero additionally alleges that the district court erred in sustaining the Government’s
objection to a portion of his counsel’s closing argument that described hub and spoke
conspiracies. Specifically, during closing, Guerrero’s counsel stated:

If you imagine a bicycle wheel where you have a hub and spokes. In order
for that wheel to work, you got to have a rim. We call it a hub and spoke
conspiracy. The rim is the common objective for the wheel to spin. The hub is
where everything gets connected.
There is a concept in the law that is called a rimless hub and wheel—hub
and spoke. And when it’s a rimless hub and spoke, then that is multiple
conspiracies that we have here. Because if the government says that the hub is
Defendant 1, he is the only one that hops from one spoke to the next with no real
common goal between the spokes.

Where there is no rim or a common goal connecting the spokes into a
single scheme, the single hub and spoke conspiracy becomes multiple separate
conspiracies between the individual spokes and the hub.

R. 177 at PID 1314–15.

The Government objected, and the district court sustained the objection, finding that the
topic was more appropriate for jury instructions rather than closing arguments. Guerrero argues
that the objection should have been overruled, relying on cases espousing a Sixth Amendment
right to a proper closing argument, as well as the Sixth Circuit’s Committee Commentary to its
Pattern Jury Instructions, which states that “[t]he Committee believes that the concepts of mutual
No. 22-6015 United States v. Guerrero Page 13

dependance and ‘chain’ vs. ‘hub’ conspiracies are more appropriate for arguments by counsel
than for instructions by the court.” Pattern Crim. Jury Instr. 6th Cir. 3.09, Committee
Commentary (2022 ed.). The Government, citing United States v. Frei,

995 F.3d 561

, 565 (6th
Cir. 2021), argues that we should find the Committee’s commentary contrary to law.
Alternatively, the Government alleges that any potential error here was harmless.

       We agree with the Government that any potential error the district court made in
sustaining the Government’s objection on this point was harmless. “An ordinary trial error is
harmless if the reviewing court finds that it did not have ‘substantial and injurious effect or
influence in determining the jury’s verdict.’” Batey v. Scutt,

460 F. App’x 530, 537

 (6th Cir.
2012) (quoting Brecht v. Abrahamson,

507 U.S. 619, 638

 (1993)); see also United States v.
Kettles,

970 F.3d 637

, 644–45 (6th Cir. 2020). The district court ruled on the objection in
question at the bench, away from the jury, who was never instructed to disregard any of
Guerrero’s counsel’s comments. After the objection, counsel continued to talk about the concept
of single versus multiple, “rimless” conspiracies. The jury was also instructed on the concept of
multiple conspiracies. Guerrero does not identify any specific argument he wanted to make but
was prevented from making because the district court sustained the Government’s objection. He
states generally that the district court “did not permit him from providing the jury an accurate
statement of law that supported his defense,” Appellant’s Br. at 41, and that “the trial court’s
error was anything but harmless,” Reply Br. at 10, but goes no further than that in demonstrating
prejudice. Under these circumstances, if any error occurred, it was harmless. See Batey,

460 F. App’x at 537

 (“By virtue of the prosecutor’s earlier admissions, the jury had access to
evidence that Jason had sexually abused Matthew in the past. Furthermore, defense counsel was
able to read aloud the most damaging portions of this evidence before the prosecutor objected.
In fact, defense counsel was able to fully argue that Dr. Zollar’s testimony merely established
that Matthew had been a victim of sexual molestation and that the jury could ultimately infer that
Jason, not Petitioner, was the perpetrator of that abuse. Although the trial court sustained the
prosecutor’s objection, it never instructed the jury to disregard defense counsel’s comments.
Finally, defense counsel was able to conclude his closing argument remarks on the subject,
without objection, by encouraging the jury to reference Matthew’s letter for itself. We are
confident that this directive, coupled with the aforementioned factors, ameliorated any prejudice
 No. 22-6015                      United States v. Guerrero                                Page 14


caused by the trial court's ruling.”); cf. United States v. Bermea,

30 F.3d 1539, 1573

(5th Cir.
1994) (“The objection to Rodriguez’s counsel’s closing argument, in particular, was harmless
because his counsel was merely prevented from showing the jury a copy of a report from a law
enforcement agency, and not from arguing the contents of that report.”).

D. Did the district court err in denying Appellant’s requested Guidelines reductions?

Guerrero finally claims he was entitled to two sentencing reductions that he did not
receive: one for acceptance of responsibility, and one for his minimal role in the crime. We
address each in turn.

a. Acceptance of Responsibility

Under U.S.S.G. § 3E1.1(a), a defendant is entitled to a two-level reduction to the offense
level if he “clearly demonstrates acceptance of responsibility for his offense.” The Application
Notes to this section state:

Conviction by trial, however, does not automatically preclude a defendant from
consideration for such a reduction. In rare situations a defendant may clearly
demonstrate an acceptance of responsibility for his criminal conduct even though
he exercises his constitutional right to a trial. This may occur, for example, where
a defendant goes to trial to assert and preserve issues that do not relate to factual
guilt (e.g., to make a constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct). In each such instance, however, a
determination that a defendant has accepted responsibility will be based primarily
upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1 cmt. n.2. Guerrero argues that he “never denied that fact that he gave money to
TFO Corona” and only “presented the legal argument that the government proved multiple
conspiracies that were not connected as the law required” and could not establish venue.
Appellant’s Br. at 43. He argues that he “took full responsibility for his actions, never denied
involvement, and never lied about his role or actions.” Id. The Government counters that
Guerrero contested several factual elements of the crime, including “whether he was a member
of the charged conspiracy” and elements of money laundering. Appellee’s Br. at 30–31. The
district court declined to apply the reduction, stating:
No. 22-6015 United States v. Guerrero Page 15

[I]t is clear that this defendant is not entitled to acceptance of responsibility in this
case either two, three, or four levels. The defendant did make legal arguments at
the outset of the case, but expanded upon those arguments and challenged,
factually, the elements of the offense and the proof that was being offered by the
United States. . . . [H]e clearly contested the facts presented by the government
through the witnesses and through the closing argument that he presented.

R. 179 at PID 1371.

“The defendant bears the burden of showing that he has accepted responsibility.” United
States v. Paulette,

457 F.3d 601, 608

 (6th Cir. 2006). While the standard of review for this claim
is not entirely clear,9 even under de novo review, Guerrero’s argument fails. “Even where a
defendant does ‘admit substantial elements of the crime charged,’” § 3E1.1(a) does not apply “if
the defendant contests even one factual element of the offense.” United States v. Trevino,

7 F.4th 414, 432

 (6th Cir. 2021) (quoting United States v. Coss,

677 F.3d 278, 292

 (6th Cir.
2012) (brackets omitted)). Guerrero challenged several factual issues.             Most blatantly, he
challenged (and continues to challenge) the factual issue of whether he was part of a larger,
overarching conspiracy with all of the individuals named in the indictment, or one smaller
conspiracy solely with Defendant One. We have treated the question of whether a defendant had
the requisite knowledge and intent to join a larger, overarching conspiracy as a question of fact.
See, e.g., Hughes,

505 F.3d at 587

 (“Whether single or multiple conspiracies have been shown is
usually a question of fact to be resolved by the jury.” (citation omitted)); United States v. Sadler,

24 F.4th 515

, 541 (6th Cir. 2022); Williams, 998 F.3d at 730–31. “We have repeatedly affirmed
denial of this reduction where defendants attempted to minimize their role in a conspiracy or
admitted to some incriminating facts but not to each factual element of the crime charged.”
United States v. Austin,

797 F. App’x 233

, 246–47 (6th Cir. 2019). While Guerrero’s challenge
on this front may also involve legal issues, it plainly involves factual questions as well, making
§ 3E1.1(a) inapplicable. Cf. United States v. Macias Martinez,

797 F. App’x 974

, 979 (6th Cir.
2020) (“Campos is mistaken to argue that the district court revoked the acceptance-of-
responsibility reduction solely on the basis of a ‘legal argument’ made by his counsel. That legal



        9
         We have at times appeared to waver between de novo and clear error review. See United States v.
Thomas,

933 F.3d 605, 611

(6th Cir. 2019) (describing the confusion).
No. 22-6015 United States v. Guerrero Page 16

argument, as shown above, was based upon a factual premise that itself amounted to a substantial
denial (rather than acceptance) of responsibility.”).

Guerrero also challenged factual elements of the underlying crime of the conspiracy—
money laundering. In his closing argument, Guerrero’s counsel stated:

I don’t think the government proved those two elements either. You heard
Officer Corona tell you today, nobody ever saw my client open the box, handle
the box, do anything with the box. There’s no evidence that he knew what was in
the box. There’s no evidence that he even knew that there was money in the box.
There’s no evidence that he had anything in his house, not even rubber bands.
There’s no evidence of any knowledge of criminal activity by Mr. Guerrero
except for giving a bag to another individual.

R. 177 at PID 1309–10. These are clearly challenges to factual guilt. Further, Guerrero at once
argues that he never challenged his factual guilt, but also that he was prejudiced by the alleged
variance in the indictment described above because “[t]he government was required to prove Mr.
Guerrero knew the money represented proceeds of activity that constituted some form of
unlawful activity” and “[t]he evidence in support of this element was lacking as to Mr. Guerrero
and the jury relied instead on evidence showing knowledge relating to the co-conspirators.”
Appellant’s Br. at 36. This is simply contradictory; how can Guerrero claim to not have
challenged factual guilt, but also claim to have been prejudiced in the form of guilt transference?
Cf. United States v. Vincent,

20 F.3d 229, 239

 (6th Cir. 1994) (“The facts in this case do not
include the rare situation where a decrease is appropriate despite the fact that the defendant
exercised his constitutional right to trial. In fact, defendant continues to believe that he is not
guilty under two counts. This contradicts his position that he has accepted responsibility for the
offenses charged.”).

       Guerrero clearly challenged factual guilt at trial and continues to challenge factual guilt
on appeal, even if he admits certain facts. Thus, § 3E1.1 does not apply. Austin, 797 F. App’x at
246 –47 (“Austin’s assertions of innocence were not simply, as appellate counsel now claims,
legal arguments challenging the applicability of the conspiracy statute to the defendant’s
conduct. . . . Austin admitted to possessing drugs and a gun, which were facts that would have
been difficult for him to deny. His admission to mere possession of methamphetamine was an
admission to a crime with which he was not charged. On the other hand, he strongly contested
 No. 22-6015                    United States v. Guerrero                              Page 17


any involvement in drug trafficking or the larger drug conspiracy, thus requiring the government
to prove this at a jury trial. The district court was correct to reject Austin’s request for this
reduction.”); United States v. Hill,

167 F.3d 1055, 1071

(6th Cir. 1999) (“The record refutes
Hill’s argument that he accepted the factual basis of the charged offenses. Likewise, his
argument that he was merely raising constitutional issues is not borne out by the record. The
government presented evidence that Hill operated an illegal gambling business, knew that his
video poker and slot machines were used for gambling, shared in the profits, and laundered the
proceeds of his illegal gambling business. Hill, on the other hand, contended that he was a
legitimate businessman, not someone who shared in illegal gambling profits or who laundered
dirty gambling money.”).

b. Role Reduction

Under U.S.S.G. § 3B1.2, a defendant is entitled to a four-level decrease of his offense
level if he was a “minimal” participant in the criminal activity, and a two-level decrease if he
was a “minor” participant; cases falling between these two categories receive a three-level
decrease. At sentencing, Guerrero requested a role reduction as a minimal participant under
U.S.S.G. § 3B1.2(a). The district court denied the reduction, stating: “the Court cannot conclude
that the defendant has established by a preponderance that he’s substantially less culpable than
the average participant in this case, including other individuals engaged in money laundering
activities.” R. 179 at PID 1362. Guerrero argues that his “actions showed he was substantially
less culpable than other conspirators who personally coordinated the drop offs, like Gonzalez and
Cossu, and those who planned, organized, and influenced the scheme, like Defendant One.”
Appellant’s Br. at 47.

Under these circumstances, we review the district court’s denial of a role reduction under
§ 3B1.2 for clear error. See United States v. Daneshvar,

925 F.3d 766, 790

 (6th Cir. 2019). It is
the defendant’s burden to demonstrate that he is entitled to a role reduction by a preponderance
of the evidence. United States v. Miller,

56 F.3d 719, 720

 (6th Cir. 1995). A role reduction is
warranted only if “his role in committing the criminal offense was such that he is ‘substantially
less culpable than the average participant’ in the crime.” United States v. Bucio,

857 F. App’x 217

, 221 (6th Cir. 2021) (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)). The Application Notes to
 No. 22-6015                     United States v. Guerrero                              Page 18


§ 3B1.2 contain a non-exhaustive list of factors for the district court to consider in determining
whether to grant a reduction, including:

       (i) the degree to which the defendant understood the scope and structure of the
             criminal activity;
       (ii) the degree to which the defendant participated in planning or organizing the
             criminal activity;
       (iii) the degree to which the defendant exercised decision-making authority or
             influenced the exercise of decision-making authority;
       (iv) the nature and extent of the defendant’s participation in the commission of
            the criminal activity, including the acts the defendant performed and the
            responsibility and discretion the defendant had in performing those acts;
       (v) the degree to which the defendant stood to benefit from the criminal activity.

U.S.S.G. § 3B1.2 cmt. n.3(C).

       With these factors—and the deferential standard owed the district court on this question,
which “depends heavily on factual determinations,” United States v. Campbell,

279 F.3d 392, 396

 (6th Cir. 2002)—in mind, we cannot say the district court clearly erred in denying a
reduction.   As the district court noted, several facts in this case indicate that Guerrero’s
participation was “equal to or greater than other money launders,” weighing against a role
reduction. R. 179 at PID 1361. These facts include:

        •    Guerrero participated in money laundering on three separate occasions, while
             others involved in the case had more limited participation/delivered lower
             amounts of money;
        •    Guerrero was aware of the amount of money being laundered on at least two
             occasions;
        •    Guerrero engaged in money laundering near his place of business and his
             home, and helped direct where the exchange of money would take place at
             least once; and
        •    Guerrero participated in the practice of using bill codes as identity
             confirmation, indicating he understood the scope of the activity.

Id.

 at PID 1361–62.

       Together, these facts can be plausibly read to indicate that Guerrero understood the scope
of the operation, that he exercised decision-making authority within the operation, that Guerrero
helped plan and organize the operation, and that Guerrero participated in the operation’s criminal
 No. 22-6015                      United States v. Guerrero                                Page 19


activity to at least an equal, if not greater, degree than the other money launderers involved. See,
e.g., Macias Martinez, 797 F. App’x a 981 (“Ortiz made seven money-laundering trips in only
five months before she was arrested; and at her suggestion the group expanded its deposits to
banks in North Carolina. The district court therefore did not clearly err in finding that Ortiz was
an average participant in the conspiracy rather than a minimal one.”); Miller,

56 F.3d at 720

(“Here, defendant participated in the scheme on several occasions. Although defendant may be
less culpable than some of his co-conspirators, this does not require a finding that he was
substantially less culpable than the others.”). While Guerrero argues that these facts could be
read in a different way—painting himself as less involved and with less authority/control—two
different plausible interpretations of the facts does not constitute clear error in this context. See
United States v. Aguwa,

123 F.3d 418

, 422–23 (6th Cir. 1997) (“The defendant argues that the
evidence in this case demonstrates that he was no more than a courier who arrived on the scene
only after the deal was consummated. . . . However, while this might indeed represent a
plausible interpretation of the facts, it is by no means the exclusive one. . . . In any event,
inasmuch as other interpretation[s] might be reasonable, we cannot conclude that the district
court committed clear error.”); United States v. Gruezo,

66 F.4th 1284

, 1293 (11th Cir. 2023)
(per curiam) (“As long as the district ‘court’s decision is supported by the record and does not
involve a misapplication of the law,’ the ‘choice between two permissible views of the evidence
as to the defendant’s role in the offense will rarely constitute clear error.’”) (quoting United
States v. Cruickshank,

837 F.3d 1182, 1192

 (11th Cir. 2016)). And while Guerrero might not
have been as in control of the operation as Defendant One or been involved in steps subsequent
to his money drops, merely having less authority than some other persons in an operation does
not mandate a role reduction. See Macias Martinez, 797 F. App’x at 981 (“True, by that measure
[the appellant’s co-conspirator] had a leadership role; but—as the district court correctly pointed
out—that does not mean that ‘everyone else gets a minor role reduction.’” (citation omitted)).
Thus, we cannot say that the district court clearly erred in denying Guerrero a role reduction
under § 3B1.2.

                                       III. CONCLUSION

       In sum, we AFFIRM the judgment and sentence of the district court.